Curry: 12-hour arrestee probable cause rule unrealistic

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Marion County Prosecutor Terry Curry told judges Tuesday that a proposed rule requiring a probable cause determination within 12 hours of an arrest in major felony cases would “set up the criminal justice system to fail in many instances.”

The proposed rule change recommended by Indianapolis criminal court judges is on hold for now.

Noting this past weekend’s multiple shooting in Broad Ripple and the slaying of Indianapolis Metropolitan Police Department Officer Perry Renn, Curry said investigations of such matters shouldn’t be compromised by standards that would burden already strained law-enforcement resources.

“We just feel as a practical matter a 12-hour limit is unrealistic,” Curry told judges of the Marion Superior Executive Committee. “You only have to look back to the events of this past weekend.”

Marion Superior criminal judges have endorsed a 12-hour rule on the advice of counsel, and the committee called on Curry to explain his office’s opposition.

While the U.S. Supreme Court has upheld detention up to 48 hours before a probable cause determination, Marion Superior judges have been advised that detention of a suspect for more than 12 hours could give rise to a civil-rights case, because judges here are available 22 hours a day, seven days a week to make probable cause determinations at the Arrestee Processing Center.

Marion Superior Criminal Term chairwoman Judge Lisa Borges said there was misunderstanding about what judges were seeking. Rather than a full probable cause determination, she said judges want to make sure people weren’t being detained without explanation.

“There has to be a reason for locking them up. That’s what we’re looking for,” Borges said, noting a simple statement from the arresting officer in most cases would suffice. “All we need is a statement of reason for the arrest.”

Borges said those determinations are routinely made within 12 hours for people suspected of minor offenses such as public intoxication, but not in major crimes cases.

Curry disagreed that it was constitutionally necessary to determine probable cause sooner than 48 hours, and he said imposing a 12-hour rule would jeopardize sensitive and complex investigations, particularly in major crimes. “One size just does not fit all,” he said.

Judge James Osborn said the courts shouldn’t rush to effectuate a rule that could cause trouble for investigating officers and prosecutors. He and other judges suggested a 24-hour rule might be more workable.

“My only concern is, are we being too aggressive?” Osborne said. He cautioned that if the judges adopted a 12-hour rule, “We are basically defining our own liability.”

After lengthy discussion Tuesday, the committee tabled the proposal. Chairman Judge David Certo said he would draft a proposal in consultation with Curry and the criminal court judges to present to the committee later.



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